Monday, December 31: Read the latest on this case at RIAA Brief: Washington Post Gets It Wrong.
Update (12/12 @ 1:10 p.m.): Check out blogger Jeff Graham’s comment:
“I think the thing that gets me is the ‘All-holy’ RIAA standing on their pedestal like Jesse Jackson [Heh!] and screaming about how we’re endangering the livelihood of struggling artists everywhere. The fact is that artists only get a few cents off of every CD sold. Where does the rest of the money go? You tell me. I wish they would just stand up and say who they’re really representing.”
I remember seeing a chart that breaks down who gets what from an album’s sale, and the artist gets a small cut compared to the record label. Can’t remember where I saw the chart, though. If you find such a chart, please post the link in the comment section.
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Are you involved in the music industry in some way (artist, producer, sales clerk, whatever)? I’d love to get your feedback on this post.
If you believed yesterday’s buzz on the tech and music sides of the blogosphere, you would have been angry.
Some blogs reported that the influential Recording Industry Association of America (fondly known as the RIAA) argued in a supplemental brief filed last week in an illegal downloading case that ripping your own CDs to your own hard drive and transferring the files to your own digital music player, something I mentioned doing in Death to DRM, are illegal. (Hat tip: Mark La Roi)
Whoa…slow down, Silver.
Copyright Makes Right
The RIAA’s mission is to protect recording artists’ intellectual property and First Amendment rights. And the organization is serious about its mission. The RIAA recently sent “pre-lawsuit” letters to 22 colleges, warning them about the use of the schools’ computer networks for piracy (unauthorized reproduction or use of a copyrighted work).
If you regularly read this blog and have faithfully followed along as I wade through a new-to-me pool of digital music tech blogging, you know there’s an ongoing battle between artists and music downloaders. The RIAA, among others, has been catching it from music downloaders. The RIAA seeks to protect artists’ copyrights, and some music consumers believe they should be allowed to download music without paying for it and/or share music they’ve acquired legally with others.
Legally speaking, if you don’t have the copyright holder’s permission to share his work, you can’t share it.
The Internet has made it easy to find and acquire “free” music, but copyright law, about 200 years old, is still in effect. What is copyright? When you create something (a recording, a piece of writing, a painting, a blog, etc.), you have the exclusive right to that work. And you don’t have to file with the U.S. Copyright Office. Your rights are automatically vested in the work when you create it. You can make copies of it, distribute it, and grant others a license to use it. Under current copyright law, your work is protected for your lifetime and 70 years after your death (if created after 1978).
(Did you know that copying and pasting someone’s entire blog post to your blog, without the blogger’s permission, is a copyright violation? Under the fair use doctrine, you may copy a small portion of it for certain purposes.)
Piracy is rampant, and there’s little artists have been able to do about it. But now it seems courts are making examples of illegal downloaders. This woman was fined $220,000 for illegal file sharing.
Can’t Rip Your Own CDs?
Did the RIAA really say consumers can’t make copies of their own CDs?
Of course not. (More discussion at ZDNet here and here.)
According to the RIAA’s 21-page supplemental brief, Atlantic Recording Corporation v. Pamela and Jeffrey Howell (PDF), a couple called the Howells allegedly distributed “copyrighted material” on Kazaa, a peer-to-peer file sharing network. Some blogs reported that the RIAA argued that ripping your own CDs is illegal.
Here’s what the RIAA actually said: The defendants stored copyrighted material in a Kazaa shared folder on their computer and distributed this material to another in violation of the copyholder’s rights.
The RIAA took it a step further and argued that a “consummated transfer” isn’t necessary for a violation to have occurred. As long as a copyrighted file is stored in a shared folder (as opposed to a “My Music” folder), copyright has been violated. Actual distribution isn’t necessary. It comes down to availability.
So, if the cops kicked in my door and searched my computers’ hard drives for signs of illegal file sharing activity, as long as my music files are stored in “My Music” or other folder where only I have access (assuming I’m a legal licensee of the file), I haven’t violated anyone’s copyright.
But if they find such files in a shared folder or in a peer-to-peer file sharing network folder from a service not authorized to share music (no licensing deal with artists or express permission to share files), I’m toast. If such files are in shared folders, they are “available” for illegal transfer. Follow that?
The blogospheric hyperventilating could have been avoided if the bloggers had read, or at least skimmed, the brief. But still, the whole thing is crazy. It’s going to get pretty expensive, not to mention impractical, to prosecute individuals who illegally transfer or “make available” copyrighted digital music on their computers. The Internet has changed the way people do a lot of things. Practically speaking, the courts can’t protect artists’ copyrights when millions of violations occur all day, every day.
1) Pretend you’re still in sixth grade and pick a side: Consumer or recording industry?
2) Your solution(s)?
Here’s mine: I suggest, as a temporary solution to the illegal downloading problem, that artists attach an “implied license” to digital renderings of their work to allow consumers to copy, share, and transfer files at will until copyright law is rewritten for the digital age. The alternative is expensive and protracted litigation against individuals like Jammie Thomas. Then again, the artists still won’t get paid from all that downloading and transferring.
If you’re interested in following this and other illegal downloading cases and digital music news in general, read and bookmark the following blogs (and check out their blogrolls):
- Recording Industry vs. The People – Intensely dislikes the RIAA
- Listening Post
- Ars Technica
- Digital Media Wire
- Our Digital Music
- HypeBot
Related posts:
{ 21 comments }
The RIAA will eventually render themselves useless; they are only alienating music fans – the very people (i.e. market) on which the artists themselves depend.
I don’t download – much less, pirate – my music. For every MP3 in my collection, I have a disc that I purchased.
It seems that, according to the RIAA, I can’t even share my own music with my family. Those MP3s are on a NAS drive accessible to my private, home network (currently, including only my wife and I). If the RIAA doesn’t like it, they can take a long walk off of a short pier, for all I’m concerned.
I’m not sure I agree that storing music in a shared folder is a priori a copyright violation. I might have very good reason to desire access to my own music over the Internet, especially as wireless access becomes more and more ubiquitious.
What exactly does it mean to “share” music anyways? If I invite my buddies over to listen to my latest digital downloads, do I need to buy a copy for each of them? What if I want to “loan out” a digital album for a friend to listen to for a few weeks? Must I erase all copies of the MP3s from my own machine until they’re done?
Jud, I think the focus is on tranferring the files to your friends. Let’s say you’re having a party and playing your iPod through attached speakers. No problem. But if you allow your friends to copy those same music files, stored on your computer hard drive, that’s illegal. Or if you make those files available in a folder where someone on a network can copy them, that’s illegal, too.
The loaning out question is rather sticky.
It’s all so complicated and it doesn’t make sense. There’s no way the industry can prevent people copying and sharing files.
But it’s trying.
I wanted to touch on a couple of points.
You say:
The RIAA members have pretty deep pockets and an entire industry to protect. I’m not sure that the cost of litigation is going to be a decisive factor. Anyway, they have FUD (fear, uncertainty and denial) to fall back on. Highly publicized decisions against, seemingly random, casual downloaders will dissuade many.
A determined thief will get the music (movie, application, e-book, etc.). BitTorrent and proxy servers aren’t exactly rocket science.
I’ll keep my music wherever I please. I’ll share that music across any kind of network I care to cook up. We have all sorts of laptops and web enabled phones kicking around and I see no reason I shouldn’t be able to access my data. Regardless of where I am.
My music, my storage.
I see this as a tacit acknowledgment by the RIAA that a technical solution to DRM isn’t in the works and a legislative “fix” is required.
This is going to have all sorts of repercussions — since when is it anyone else’s business where I store a file? Are DMCA nastygrams going to become probable cause to search my drives? I’m sure the law enforcement folks and civil courts will be thrilled — because, you know, it isn’t like they have anything better to do.
It may sound hyperbolic, but this is the proverbial slippery slope. I’m not looking forward to the day when corporate interests trump my right to privacy and fair use of data that I am legally entitled to, uh… use.
Ok, silly question alert.
Why don’t they make the CDs copy/rip proof?
The RIAA took it a step further and argued that a “consummated transfer” isn’t necessary for a violation to have occurred. As long as a copyrighted file is stored in a shared folder (as opposed to a “My Music” folder), copyright has been violated. Actual distribution isn’t necessary. It comes down to availability.
How many people out there are technically savvy enough to rip their own CDs, but not technically savvy enough to know about file sharing permissions, know how to set up a firewall properly, or know how to set up encryption on their wifi?
By this theory, a lot of them are copyright violaters without even knowing it.
This claim that capability to commit a crime is the same as having actually done so looks pretty weak to me.
I think the thing that gets me is the “All-holy” RIAA standing on their pedestal like Jesse Jackson and screaming about how we’re endangering the livelihood of struggling artists everywhere. The fact is that artists only get a few cents off of every CD sold. Where does the rest of the money go? You tell me. I wish they would just stand up and say who they’re really representing.
-Jeff-
“Let’s say you’re having a party and playing your iPod through attached speakers. No problem. ”
~Believe it or not, that could now constitute “public broadcast” in the eyes of some, and thus require paying usage fees. If you charged an entrance fee at that party there definitely would be those who’d attempt to make you pay. I know of a couple instances where coffee shops were served notice that if they continued to play background music without paying the reporting agencies, they’d be fined, and one instance of a church/coffee shop type setup which had no cover but a “suggested donation” received a notice that it was time to pay up. I dunno the outcome of that one. A local gym owner told me that he had to tell his aerobics instructors that they couldn’t use their home made mixtapes in their classes anymore on advice of his lawyer because of the copyright issue, even if they owned the original copies.
It’s nuts out there, and the hardline crackdown on consumers/users is only going to make the problem worse. I see right and wrong on both sides, but can’t deny that the ol’ frontal assault is only going to add fuel to the efforts to defeat it rather than secure some self-defeating “victory”.
Great coverage of a very complicated and confusing topic. Thanks LaShawn.
You described a temporary solution using “implied licenses.”
Just wanted to make you aware that the Creative Commons website provides “customized” licenses for those that want to allow their music to be reused, remixed, or repurposed. Started by Larry Lessig, the famous Intellectual Property Rights attorney, the organization provides artists and creators an alternative to the current mess that is copyright law.
A short video describing Creative Commons can be found here
Mr. Graham is right on about the RIAA being highly disingenuous when it comes to the money being paid to artists for a CD. I suggest anyone interested in this issue try to check out VH1’s “Behind the Music” special on hip-hop group TLC. During the interview segment, Lisa “Left Eye” Lopes breaks down the manner in which a group that sells millions of CD’s sees very little money. It was fascinating to hear her list all the “expenses” that must be reimbursed to the record company before a single sale is made. That is why relentless touring is so necessary. A few legacy artists (Madonna, Springsteen) get to make their own deals, but those are few and far between.
LaShawn:
The only breakdown I’ve seen recently was in an article at The Minnesota Daily. I also posted it here.
It’s true that artists only get a small percentage of CD sales. It’s no longer posted that I can find, but Rich Ward of Stuck Mojo had a very long explanation on stuckmojomedia.com about why he decided to release their latest album for free download. Apparently several record companies shafted them.
The RIAA is using the legal system to maintain record companies’ status as middlemen. Record companies are becoming archaic and they know it. Artists don’t need record contracts to distribute music. Instead of listening to the market and adjusting business models accordingly, the RIAA member companies have chosen to sue their own customers, fight new technology, and refuse to innovate. I respect intellectual property, but clamping down on consumers using the legal system is only going to make the consumers and artists create a new model that doesn’t include the RIAA members.
As I mentioned in another post, the record industry has always been thoroughly corrupt. They are now reaping the fallout.
And, as I also pointed out before, if I sell my van, Nissan doesn’t get a cut. They’ve already got theirs. So people need the royalties from CD sales, so what? People need the money from car sales, too, but there isn’t any law that lets the car companies take another bite of the apple.
Mark LaRoi–
I believe you about the “public broadcast”. “Publication” of a song has for years meant simply passing copies around trying to get someone to sell or sing it. My cousin and I both tried to break into the music business as songwriters many years ago. I never thought I’d say this, but thank the good Lord we never succeeded.
A better day is coming for artists and songwriters, if they’re willing to take the opportunity. The RIAA’s complaints are the last dying gasps of a monster. Good riddance.
The best reference I’ve ever seen to how the money from CD sales gets distributed is a famous article by Steve Albini (artist, recording engineer, and producer), “The Problem with Music.”
gecko57 – A CD that was “copy/rip proof” would not be a CD at all; it would be a silver disc that looked like a CD but would not be up to “Red Book standards.” CD players have to be able to read the bits off a CD to play the disc, and, if the bits can be read, they can be copied. You can’t encrypt them or anything like that because then no CD player anywhere could play the disc. Maybe you can make it more difficult to copy the actual bits off the disc (as with the infamous Sony “rootkits,” which, in the long run, did more harm than good), but you can never make it impossible. (With DVDs, it’s harder to copy the actual bits, because there is encryption involved, but it’s still not impossible. For HD-DVDs and Blu-ray discs, it’s harder yet, but again, still not impossible.)
Being in the music industry for over 25 years, having over 40 songs recorded by artists on major and independent record labels, I can honestly say, I’ve never received my fair share of profit! The labels had a way of hiding (they were actually sharing my songs) so they wouldn’t have to pay me for all the “promo” copies…and in the earlier years, demanded my publishing to profit and own my songs. I mostly was paid because of airplay….which was a huge amount of about 3 cents a play.
The only way to get any type of understanding on what these people owed me was to pay an independent company to go through their records…which was so costly that none of us could ever afford it. And…not everything gets put on record.
I find some of my songs are available to download…but because companies sell their catalogs all the time, who knows who owns what at the moment?!
I’m just one writer who had a fair amount of success in the “Christian Music” business…and with all those songs recorded, I always had to have side jobs to make a living as many of my peers did and still do.
None of this is fair…get rid of the evil companies, and the customer who downloads your music from your own site…will still give your music away to others. You can’t stop that. People don’t understand or care to understand…because in their mind, they paid for it so what gives the artist/writer the right to tell them what they can do with it?
Works the same way with the publishing industry. College bookstores (who get beat up over the price of textbooks) sometimes post the “book dollar” showing the minuscule amount that goes to the end retailer and the actual author(s)…
Mark–
Not “in their minds”, in fact. People do understand. You’re talking like one of the goblins in Harry Potter–what’s mine is mine, and what’s yours is still mine.
I’m a writer. I have not yet had a book published, but I am perfectly aware that when (not if) I do, people are going to pass it on to friends. Even worse, libraries may buy it and actually let HUNDREDS of people read it for free! Wow, what a ripoff!
Well, no, not really. The people who read books for free are also the people who buy books. The people who download music and buy used CDs–this has been proven–are also the people who buy more music than any other group. Cage and punish them, and you’ve lost your consumer base. The more you cling to your product, the less likely anyone is to purchase it. They’ll just turn to other artists, artists who will work with the new technologies to produce solutions viable to all.
I’m sorry you struck a bad deal. But it was, and is, completely fair, because that was what you were willing to settle for. It was no one’s choice but yours. A better day IS coming, if you have the vision. If you believe your fans are ripping you off, that day may never come for you. I’m sorry if that is the case.
(On a side note: I stopped listening to “Christian Music” because so much of what I heard was stolen from other artists. Yes, you read that right. I went to a concert with a friend who told me, “This band is great. They write all their own music.” The first song they performed was a Michael Nesmith song with two or three words changed to make it seem like a religious song and not a secular song. I don’t know how much of that is still prevalent; I hope little or none.)
Trish – You really took my words way too far, but that’s okay. I did choose my path, and still very proud of the work that I accomplished. I never did it for the money anyway…it was my heart and ministry. As far as you giving up Christian Music because “we” ripped off secular music…you might do a little research. Christian producers, writers, and musicians were and still are being used all over in secular music…because “we” were and still are changing the landscape. I could point to a few popular “secular” songs that were ripped from my own personal songs (because I did work with the major labels, artists, and writers) and they chose to ignore the “christian” theme and re-write it just enough to become mainstream. And you could ask a hundred other “Christian” songwriters who would have similar stories.
Anyway, God bless you in your writing…but, remember when you see your books being downloaded for free off of sites all over the internet…I’m sure you might have a bit of a different take on this subject when you don’t quite have enough to pay your bills.
Mark,
I have to say I agree with Trish on this. From the outset, I am not a music consumer. I have never really listened to music radio stations.
However, I am a voracious reader of history/historical fiction, Sci-fi, and fantasy. Most of my reading is through the ‘evil’ libraries, free libraries online, and used bookstores. Thus, I must be one of the ‘pirates’ to be keel-hauled as destroying the authors’ way of life. (”Quick get the firing squad ready!”, said the author mob.)
A funny thing has happened, though. Now that I am making sufficient to cover my family’s needs and more, I am starting to buy new books. What books am I buying? Those that were available for free online. Who would have thought that free sampling might drive future sales?
FYI, you might want to review Eric Flint’s ideas on the whole read (listen) for free idea. His essay is at http://www.baen.com/library/defaultTitles.htm. By the way, Mr. Flint is an author with at least 20 novels, anthologies, and other published works.
Brian,
There are many who have a heart and will eventually buy the product…but many more will never even consider it. It’s easy when you have had a profitable career and now choose to have your product available free on line, because you know that your success will bring the customers. As a songwriter who may have 1 song on a CD of 10 songs by a certain artist and your song might not be the “hit”…is how so many writers are being forced out of business and not receiving their due . Personally, I learned many years ago that I could not count on being paid by the companies or the artists…and I still chose to participate. I just made money doing other things to pay my bills.
Mark,
I guess it all comes down to whether you think people are basically honest or not. If you think not, then it obviously makes sense to do anyting possible to crack down/limit piracy/listen for free.
If you think people are basically honest, then you recognize that trying to eliminate piracy/listen for free is counter productive.
One thing that would tick me off as a writer/artist is the way entertainment companies (film/music) seem to load every *&$& expense on the royalties to ensure the minimum net payout, if that is what you mean by not getting paid by the artist or company.
Brian,
It’s not if they are honest or not, it’s how we are programmed to think we deserve it for free. Marketing is a great tool…and for many years here in the usa, many now expect something for nothing or at least ask what they get for free should they buy…
Yes, the companies load every expense on the royalty system, but in my case it’s even more than that. Some of the major labels never even sent an invoice or accounting on many of my songs that were recorded on record. They knew it didn’t matter…because of the all the hidden expense they would never owe me.
As far as I’m concerned, I would give it all away . Just make sure I have a job that will pay my bills.
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